EU launches divorce dialogue

The EU yesterday launched a Green Paper with proposals on finding solutions for "international couples" seeking divorce.

The paper discusses the difficulties faced by couples of different nationalities who need to know which member state's divorce law is applicable.

Justice Commissioner Franco Frattini said the aim of the paper "is not to harmonise the divorce laws of member states but to find solutions which facilitate the life of the citizens".

Malta is the only EU member state that does not permit divorce. A Commission spokesman told The Times the Green Paper does not intend, in any way, to impose divorce legislation on Malta.

The spokesman, however, added that "although Malta does not permit divorce, its laws already recognise a divorce obtained in foreign courts and, therefore, this Green Paper also concerns Malta".

The Commission said the current situation in member states may lead to practical difficulties for the increasing number of "international" couples who divorce each year within the European Union. The initiative is part of the EU's work to create a common judicial area in the field of family law with the aim of facilitating the daily life of the citizens.

The EU has so far established common rules on jurisdiction of courts and mutual recognition of divorce judgments. However, the Commission believes it is also necessary to tackle the question of applicable law, as so-called international couples find it difficult to predict which national laws the divorce court will apply.

Many of the divorces that take place in the EU concern marriages between spouses of different nationalities or spouses living in different member states.

In Germany alone, about 30,000 couples of different nationalities divorce each year. There are currently no EU rules applicable to laws governing divorce.

The only regulations concern rules on jurisdiction of courts and provides for mutual recognition of divorce judgments but does not include conflict-of-law rules.

The current jurisdiction rules may in certain cases encourage a spouse to file for divorce before the other spouse to ensure the application of a particular divorce law.

Another problem is the lack of legal certainty and predictability for the spouses. The current rules may finally result in situations that do not respond to the legitimate expectations of the citizens.

The lack of legal certainty and predictability is particularly striking when the spouses are of different nationalities and do not live in the same member state. As an example, a Portuguese-Italian couple who split up shortly after the marriage and move back to their respective member states may apply for divorce in either Portugal or Italy.

An Italian court would apply the law of the state where the marriage was "principally based". A Portuguese court would, on the other hand, apply the law of the state with which the spouses have the "closest connection". The spouses would in both cases have difficulties to predict what the applicable law would be.

The Commission's Green Paper suggests several possible solutions to enhance legal certainty and meet the legitimate expectations of the citizens.

The EU executive said this was the beginning of a wide-ranging public consultation with all interested stakeholders. It will organise a public hearing this year to which all those responding to the Green Paper will be invited.